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Does the FMLA cover leave for cosmetic surgery?

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in Employment Law,Firing,FMLA Guidelines,Human Resources

Employees can take job-protected leave under the Family and Medical Leave Act (FMLA) for serious health conditions. But the U.S. Department of Labor's FMLA regulations say, “conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘serious health conditions’ unless inpatient hospital care is required or unless complications develop.” (FMLA 29 C.F.R. § 825.113(d))

Therefore, whether your employee’s leave falls under the FMLA would depend in part on whether the employee needs to stay overnight at the hospital or whether the surgery causes complications that then rise to the level of a "serious" medical condition (see below). Challenge such leave requests by asking for the second and third certifications that the FMLA allows.

The regulations do say that, "Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met."

Recent case: Chicago city worker Gladys Alcazar-Anselmo filed an FMLA retaliation lawsuit, saying her firing came soon after she requested FMLA leave for a scheduled surgery.

The city argued that Alcazar-Anselmo wasn’t eligible for FMLA because the surgery was an elective, cosmetic procedure. She presented a doctor’s opinion saying the surgery was medically necessary. The city countered with its own expert who said it wasn’t. The judge ruled that a jury should sort out the medical evidence and decide. (Alcazar-Anselmo v. City of Chicago, No. 07-C-5246, ND IL, 2010)

Final note: The best approach is to use the FMLA’s certification process before turning down a request. Few judges will second-guess a denial based on two independent medical assessments that say the surgery was not medically necessary.

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